After five years, “dancing baby” YouTube takedown lawsuit nears a climax

Judge says he doesn't see a clear win for either EFF or Universal Music.

SAN JOSE, California—It's been five years since Stephanie Lenz, angry that a video of her son dancing to a Prince song was taken down from YouTube, reached out to the lawyers at the Electronic Frontier Foundation. Ultimately, Lenz worked with EFF lawyers to sue Universal Music, the company that initiated the takedown.

Arguing against the takedown of a 29-second home video portraying a toddler dancing might have been a slam dunk from a PR perspective; legally speaking, it's been anything but. EFF was looking for a case that was so obviously an example of "fair use" that the content owner who initiated the takedown could actually be forced to pay damages, under a little-used section of the Digital Millennium Copyright Act, section 512(f). But the bar is very high to get that type of relief. That became crystal clear at the most important hearing in the case thus far, held today in San Jose.

Both sides have filed extensive motions saying all the facts point to a win for their side. US District Judge Jeremy Fogel, who is overseeing the case, said at the hearing that he isn't inclined to find for either side without a jury trial. After years of discovery, and several depositions of key Universal employees involved in the takedown, Fogel said that it isn't clear that EFF has met the high burden of showing that Universal exhibited "subjective bad faith."

EFF would have to show that there's no way the video was not fair use, first of all. In addition, EFF lawyers would have to show "there was some concerted activity on Universal's part to blind itself to that fact—that even knowing they had nothing to stand on with regards to fair use, they put out a takedown." Even if EFF could show that Universal Music acted recklessly or with negligence—that wouldn't be enough.

He hardly seemed ready to rule in Universal's favor, either. "A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith," he said.

Having laid that out, he still listened to arguments on both sides. Corynne McSherry, arguing for EFF, said that Universal should be found liable because it really had no process in place that could have conceivably led to a finding of 'fair use.'

"Sean Johnson [the Universal employee who initiated the takedown] wasn't equipped—he had no idea what to look for. Whether it was Ms. Lenz's fair use, or anybody else's."

Kelly Klaus of Munger, Tolles & Olson argued for Universal. After years of discovery, Klaus argued, EFF can't show that anyone at Universal thought the takedown was illegitimate. "There is no evidence whatsoever in this record that Universal knew it was making a misrepresentation," said Klaus. "Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)." And that's just not practical, he said. Universal employees who were hunting for Prince songs on YouTube found thousands of posts, and many of them went back up as soon as they were taken down. "They were playing a game of whack-a-mole."

The amount of damages EFF is fighting for is tiny in the grand scheme of things. Judge Fogel has already limited the amount it can ask for. EFF is asking for compensation for 10 hours of Lenz's time, spent dealing with the takedown notice before she contacted EFF, based on the Pennsylvania minimum wage at the time of $6.25 per hour. It's also asking for $1,275 for the time that EFF attorneys spent advising her pre-suit.

Despite the fact that not much money can be won, in an interview with Ars, McSherry said that the principle the EFF is fighting for is still important.

"You have to have a process in place that will cause content owners to hesitate in the first place," said McSherry. That's more important than ever around election time. "Imagine if I put up a political video, and some content owner—based on a completely specious allegation of copyright infringement—took it down. Even if I counter-notice immediately, it will be taken down for two weeks."

At the end of the day, almost no users will be able to harness the resources that Stephanie Lenz has in an effort to fight back against a questionable copyright takedown, and so it's hard to see what effect this will have on protecting fair use rights more broadly. After five years, it isn't clear whether the fight to even win compensation for Lenz herself will bear fruit; it's harder yet to imagine anyone is eager to follow in her footsteps, or to believe it will lead to a sea change in the behavior of content owners.

Overall, there just isn't much strength in the part of the DMCA that prevents abusive takedowns. EFF's most strident attempt to put some teeth into that law has been a long slog, still without a clear outcome.

69 Reader Comments

Is that the devil's baby or something, why doesn't it have whites in its eyes?

It's pretty clear that the whole DMCA takedown process is still weighted heavily in favour of Big Content/whoever can afford lawyers to fight the cause. Pity that it couldn't be resolved more clearly here, perhaps with a duel or deathmatch or something else definitive and final.

I'm just hoping we'll see this taken to a precedent setting decision in the end. There seems to be no downside to filing a false DMCA claim. If the precedent is there is no downside then we can lobby based on that. If, OTOH, the precedent is more clearly where any sane individual would think it is (that being that videotaping your baby dancing while a song happens to play is fair use of that song) then so much the better.

"Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)." And that's just not practical, he said.

Given that DMCA takendowns are extrajudicial, it seems to me that issuing a takedown without even bothering to look at the potential applicability of affirmative defenses clearly amounts to an act of bad faith because nemo censetur ignorare legem (even fair use, especially for someone authorized to act on matters of copyright).

So if I understand Universals argument, if they don't have anyone doing a fair use investigation, they can't knowingly misrepresent a DMCA takedown, they didn't know it was fair use, because they didn't look for fair use. As long as we don't know it's fair use we cant be held liable for for taking down a video that is clearly fair use...Brilliant.

"I didn't know she was only 17" "Did you ask her how old she was?""Well, no because then I would know she was only 17..."

" "Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)." And that's just not practical, he said."

Did anyone else catch this? Is that not worrying? Is that not a tad similar to the police saying "We can't give every criminal due process before we sentence them, because it's just not practical"?

I would damn well think that they should be concerned about whether or not they're basically doing due diligence every time they post a copyright infringement notice, particularly if the targets are individuals as opposed to large corporations such as Google

" "Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)." And that's just not practical, he said."

Did anyone else catch this? Is that not worrying? Is that not a tad similar to the police saying "We can't give every criminal due process before we sentence them, because it's just not practical"?

I would damn well think that they should be concerned about whether or not they're basically doing due diligence every time they post a copyright infringement notice, particularly if the targets are individuals as opposed to large corporations such as Google

That, right there, is one major difference between civil and criminal law, though. I kind of wish it weren't so and that we held civil litigants to as harsh a standard as criminal cases tend to. If pigs had wings and all ...

"After years of discovery, Klaus argued, EFF can't show that anyone at Universal thought the takedown was illegitimate."

So as long as Universal have convinced themselves that there's no such thing as an illegitimate takedown, they're all okay then. Heck, they probably have a business rule to that effect, so it must be right.

I know the video is embedded right at the top, but I still think it is good practice to devote at least a sentence to the nature of the use of whatever song it is. I don't think I'm the only reader who doesn't want to watch a video of someone else's baby. I think it would be creepy to watch it.

Further, not every reader will read this article in a setting suitable for video playback. And double further... Isn't your right to disseminate that video the very topic of this piece? Should that even be here?

Is it a Beach Boys song playing on a boombox in the background? Is it a P. Diddly jam carefully trimmed to the video and presented at 44kHz? Is the baby singing Your Body is a Wonderland by... Uh, that one performance artist?

I know I might sound somewhat... Persnickety. That's because I am. I expect more from Ars.

There is no video at the top, it is a photo. The whole point of this article was the take down of the video. I also have no idea what it is about, and the author needs to provide more background details.

I know the video is embedded right at the top, but I still think it is good practice to devote at least a sentence to the nature of the use of whatever song it is. I don't think I'm the only reader who doesn't want to watch a video of someone else's baby. I think it would be creepy to watch it.

Further, not every reader will read this article in a setting suitable for video playback. And double further... Isn't your right to disseminate that video the very topic of this piece? Should that even be here?

Is it a Beach Boys song playing on a boombox in the background? Is it a P. Diddly jam carefully trimmed to the video and presented at 44kHz? Is the baby singing Your Body is a Wonderland by... Uh, that one performance artist?

I know I might sound somewhat... Persnickety. That's because I am. I expect more from Ars.

There is no video at the top, it is a photo. The whole point of this article was the take down of the video. I also have no idea what it is about, and the author needs to provide more background details.

Never really thought that this case was going to win any damages. The bar is set so high to win your case and in contrast the damages that can be recovered are so low that it makes 512(f) completely toothless. I understand the problem that copyright owners face, however, it is unreasonable to tilt the system in your favor this much. Content owners should be required to do more due diligence than is currently expected from them, just finding something that may be infringing is not enough. Regardless of the outcome I would hope that this gives some traction to the idea of revisiting the DMCA as a whole.

I'm surprised it hasn't happened already but this seems right up the alley for hackers to send fake DCMA takedown notices against just about everything on the internet. And what better way to show how poorly the law is constructed but to take advantage of it shut off content/media on the internet.

Is that the gist of this judge's comments? By golly, I'm going to conveniently forgot that crime is illegal. Exaggeration, yes, but I'm just following this to its logical conclusion.

Ignorance is probably innocence of acting in bad faith, it seems. From what I can gather, Universal's employees aren't trained at all on fair use so a bad faith takedown is virtually impossible. Seems pretty damned stupid, yeah.

I know the video is embedded right at the top, but I still think it is good practice to devote at least a sentence to the nature of the use of whatever song it is. I don't think I'm the only reader who doesn't want to watch a video of someone else's baby. I think it would be creepy to watch it.

Further, not every reader will read this article in a setting suitable for video playback. And double further... Isn't your right to disseminate that video the very topic of this piece? Should that even be here?

Is it a Beach Boys song playing on a boombox in the background? Is it a P. Diddly jam carefully trimmed to the video and presented at 44kHz? Is the baby singing Your Body is a Wonderland by... Uh, that one performance artist?

I know I might sound somewhat... Persnickety. That's because I am. I expect more from Ars.

There is no video at the top, it is a photo. The whole point of this article was the take down of the video. I also have no idea what it is about, and the author needs to provide more background details.

The video link is right under that big photo at the top right of the page.

"After years of discovery, Klaus argued, EFF can't show that anyone at Universal thought the takedown was illegitimate."

So as long as Universal have convinced themselves that there's no such thing as an illegitimate takedown, they're all okay then. Heck, they probably have a business rule to that effect, so it must be right.

That definitely makes me feel better about it.

Even worse is the fact that even if Universal loses, as was pointed out, what defendant is going to be able to bankroll a case that results in a $2k pay out and takes 5 years? What this case shows is there really is no reason for them to not just keep doing business as usual, ruling be damned. Further proof that the DMCA puts all the power in the hands of the copyright holders. Joe public doesn't stand a chance. I sure am not going to hold out hope congress fixes it anytime soon.

Part of the problem that the EFF is running into is that the bad faith provision of the DMCA was not designed to punish copyright holders for taking down fair use iterations of their copyrighted material. Rather, it was designed to punish people who issued DMCA takedowns fraudulently, i.e. knowing that they do not have ownership over the copyrights. That's why the requirement is codified as bad faith as a matter of law -- it's easy to summarily show bad faith when you don't have the legal rights you are asserting.

The legal question in this case becomes tremendously twisted when trying to fit it to a fair use claim; can there even be "fair use as a matter of law?" Fair use is always weighed on the facts of the case according to four non-exclusive factors. I don't think there ever could be a fair use as a matter of law under the current fair use scheme, because as an affirmative defense it's not codified in the law. It's a judicially recognized exception to copyrights, but it has to be taken on a case-by-case basis. It might not be fair use if the music was only 30 seconds long, or if she started selling copies of the video with different dance tracks. That's why the judge wants a jury (as well he should), because facts are decided by the jury, and fair use is a jury issue.

It's frustrating that there is seemingly no legislation to stop egregious DMCA takedowns, and it highlights some of the major gaps and problems created by the DMCA itself. But as much as I'd like to side with the EFF on this one, I do think it's an overreach of the existing law. The DMCA was simply not written with the intent to punish trigger-happy copyright holders. That may make it a bad law, but it sets a dangerous precedent to use bad laws to punish bad people rather than craft better laws to achieve the same result.

How in the world are better laws supposed to be written when Congress just has the RIAA or MPAA write the law for them to pass? I mean why not? They're the experts in this after all, it's their job. The courts are really the only check the people have left.

"After years of discovery, Klaus argued, EFF can't show that anyone at Universal thought the takedown was illegitimate."

So as long as Universal have convinced themselves that there's no such thing as an illegitimate takedown, they're all okay then. Heck, they probably have a business rule to that effect, so it must be right.

That definitely makes me feel better about it.

That's the first thing that stood out to me, too. If they have a culture of always being right all the time, then they will never have any emails of illegitimate takedown.

There is no video at the top, it is a photo. The whole point of this article was the take down of the video. I also have no idea what it is about, and the author needs to provide more background details.

The video link is right under that big photo at the top right of the page.

I think you missed the point of their comments completely. One would hope the author would provide, at least, a mention of what the "infringing" content was.

There is no video at the top, it is a photo. The whole point of this article was the take down of the video. I also have no idea what it is about, and the author needs to provide more background details.

The video link is right under that big photo at the top right of the page.

I think you missed the point of their comments completely. One would hope the author would provide, at least, a mention of what the "infringing" content was.

First paragraph. Dancing baby (to some Universal song).

Universal seems to recognize the song. I can't make heads or tails of what's playing. Though, that's not the point of the video. Hence why it's clearly fair use. The same thing made rounds prior in a similar case, even on the nightly televised news when a baby dancing to some barely recognizable song by Prince (playing in the background) was yanked from Youtube for "copyright violation".

All this case proves is that the public should just ignore copyright since the public has no recourse over the big media conglomerates when the big guys don't play fair. So, why should the rest of us peons give a damn about the laws the big guy's lobbyists bough? I no longer do.

This news case is really old and was reported a lot when it was brand new, so the author may have assumed, mistakenly, that everyone would know what it was already. For the record, the song was "Let's Go Crazy" by Prince - an artist who, despite being the first musician to put his music videos on the web (we're talking Altavista era Internet here), put them up behind a paywall, then took them down, and has since been very aggressive with takedowns.

I think you missed the point of their comments completely. One would hope the author would provide, at least, a mention of what the "infringing" content was.

The word "sue" in the opening paragraph is a link to the original Ars article from 2007.

My point was only being that the song itself wasn't mentioned in the article. A link was provided, sure, I'll give you that. But in that same sentence, the actual song title could have been mentioned. Joe made several comments on what the baby was doing in the video, just no mention of the actual song . That was purely my addition.

" "Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)." And that's just not practical, he said."

Did anyone else catch this? Is that not worrying? Is that not a tad similar to the police saying "We can't give every criminal due process before we sentence them, because it's just not practical"?

I would damn well think that they should be concerned about whether or not they're basically doing due diligence every time they post a copyright infringement notice, particularly if the targets are individuals as opposed to large corporations such as Google

At first I read it just as you did and was equally shocked by that possible meaning. But then I saw the word "full": doing a full [fair use] review. That one word might make a big difference in the interpretation of the statement.

If they meant that the review should not have to include a fair use evaluation (even as simple as it might be), then yes that statement is very bold as fait use is a legal exemption to use the copyrighted material.

However it could also mean that the fair use evaluation should not be exhaustive in every single case. Some cases can be a clear cut case of infringement and some can be a clear cut case of fair use. For cases of obvious infringement, a more elaborated evaluation (looking up phone ids, phones and contacting some one) might not be warranted. It would also imply that for clear fair use cases they investigate no more and would not put out a DMCA notice either.

Just another way to interpret that sentence?

Anyway, if they mean it in the 2nd interpretation, the statement is acceptable as a defence in general. But it would not help in this case, as this case seems clear fair use, as indicated even by the judge.

I think this case should be ruled against Universal because either- they had a fair use evaluation system in place and since the fair use was ruled as obvious for a non-expert, the neglection would therefore have been willfull and malevolent by universal's submitter.- or they did not have a fair use evaluation system in place and since law includes fair use as a legal exception, that means that management of universal created a system that selectively picks out parts of the law that is only beneficial to themselves and ignores rights of others. In that case the management decision was malevolent and leads to the "intended blindness" that needed to be proven.

After which we'll see a tidal wave of bogus DMCA take down notices because those sending know that that this one provision written into the law is about as worthless as the paper it's written on and, as such, there will be little to no possibility that they'll get fined for engaging in such practises.

EDIT: Not that they didn't think that already, but this now gives them legal precedent.

Ignorance is probably innocence of acting in bad faith, it seems. From what I can gather, Universal's employees aren't trained at all on fair use so a bad faith takedown is virtually impossible. Seems pretty damned stupid, yeah.

So the employee wasn't acting in bad faith. Ok, I can accept that. However, a company that knowingly puts untrained employees to send these letter definitely is.

"Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)." And that's just not practical, he said.

Given that DMCA takendowns are extrajudicial, it seems to me that issuing a takedown without even bothering to look at the potential applicability of affirmative defenses clearly amounts to an act of bad faith because nemo censetur ignorare legem (even fair use, especially for someone authorized to act on matters of copyright).

I'm torn on this one. The thing is, this is exactly the same argument we use against software patents. It's just not practical for software developers to do a full review of their software to find the hundreds of patents they might infringe.

Fear not, the judge clearly said that he won't rule on this, but instead will let the trial go forward to a trial before a jury.

The reason behind this, IMHO, is that the Judge is playing very safe here. Universal is clearly not innocent in this matter, but neither can he tie the arguments of the EFF down in such a manner that they would be reapeal-proof. Hence, a throw of dice in front of a jury.

Even worse is the fact that even if Universal loses, as was pointed out, what defendant is going to be able to bankroll a case that results in a $2k pay out and takes 5 years? What this case shows is there really is no reason for them to not just keep doing business as usual, ruling be damned. Further proof that the DMCA puts all the power in the hands of the copyright holders. Joe public doesn't stand a chance. I sure am not going to hold out hope congress fixes it anytime soon.

I'd like to see Universal be forced to pay punitive damages, which could go to legal help for others who had unrightful DMCA takedowns of their videos.

Because yeah, $2000 and legal costs isn't going to deter any rightsholders from frivolous takedown requests.

Universal seems to recognize the song. I can't make heads or tails of what's playing. Though, that's not the point of the video. Hence why it's clearly fair use. The same thing made rounds prior in a similar case, even on the nightly televised news when a baby dancing to some barely recognizable song by Prince (playing in the background) was yanked from Youtube for "copyright violation".

Um... this is that same case. The song in the video is a Prince song, and this is the video & takedown that made the rounds on the nightly news.